Coleman v. State

310 So.3d 1043

Joseph COLEMAN, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-2143

District Court of Appeal of Florida, Second District.

Opinion filed October 2, 2020

Howard L. Dimmig, II, Public Defender, and Steven G. Mason, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Lindsay D. Turner, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Chief Judge.

Joseph Coleman appeals his judgment and sentence for attempted first-degree murder and kidnapping entered following retrial on remand from this court's reversal in Coleman v. State, 157 So. 3d 368 (Fla. 2d DCA 2015). We reverse the judgment and conviction for attempted first-degree murder and remand with directions for the trial court to reduce Coleman's conviction for that offense to the lesser-included offense of attempted second-degree murder and resentence him accordingly. We affirm in all other respects.¹

On May 18, 2006, Coleman was charged with the attempted first-degree murder and kidnapping of his estranged wife. The offenses had allegedly occurred on May 2, 2006. A jury found Coleman guilty of the lesser-included offense of attempted second-degree murder and guilty of kidnapping as charged. On December 15, 2009, a judgment was entered, and Coleman was sentenced to life in prison with a twenty-five-year mandatory minimum sentence. This court per curiam affirmed that judgment. Coleman v. State, 63 So. 3d 760 (Fla. 2d DCA 2011).

Coleman later filed a petition alleging ineffective assistance of appellate counsel, which this court granted and concluded entitled Coleman to a belated appeal. Coleman v. State, 110 So. 3d 971, 971 (Fla. 2d DCA 2013). In the belated appeal, this court reversed Coleman's conviction and sentence for attempted second-degree murder and remanded for a new trial on that offense. Coleman, 157 So. 3d at 370. However, on remand, Coleman was erroneously retried on the original charges, and this time the jury found him guilty of attempted first-degree murder and kidnapping. He was sentenced to a term of natural life with a twenty-five-year mandatory minimum sentence.

On appeal, Coleman argues—and the State appropriately concedes—that his conviction on retrial for attempted first-degree murder violates the prohibition against double jeopardy because the original jury acquitted him of that charge when it convicted him of the lesser-included offense of attempted second-degree murder. The First District's decision in Middleton v. State, 131 So. 3d 815 (Fla. 1st DCA 2014), is instructive. In Middleton, the "[a]ppellant assert[ed] his prior conviction for the lesser[ ]included offense of second-degree murder with a firearm was an implied acquittal on the charged offense of first-degree murder with a firearm for purposes of double jeopardy," and the First District agreed. Id. at 816. Accordingly, the court concluded that "appellant's retrial and conviction for first-degree murder with a firearm violated the constitutional prohibition against double jeopardy." Id. at 818.

Similarly, in the instant case, the original jury's verdict on the...